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TMI Blog2016 (1) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... ction is being initiated within four years. It is by now well settled for issuing notice for reopening, the Assessing Officer herself ought to have recorded the satisfaction that income chargeable to tax had escaped assessment. Even the revenue's audit party cannot prevail over such opinion of the Assessing Officer. The audit party can bring to the notice of the Assessing Officer an element which might have escaped her notice, nevertheless, once she was convinced that the objection of the revenue party was not valid, her act of issuing notice for reopening was simply not permissible. We may refer to the decision of the Supreme Court in case of Indian and Eastern Newspaper Society v. Commissioner of Incometax, New Delhi reported in [1979 (8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the same as "intangible asset". On perusal of assessment records it is noticed that the assessee has been using "infrastructure" developed by Mundra Port and Special Economic Zone (MPSEZ). As per the depreciation charge submitted by the assessee, the depreciation allowed on "Infrastructure Usage Facility" was not in order on the following grounds : The expenditure incurred by the assessee for usage of infrastructure facility was undoubtedly capital in nature as the assessee is deriving enduring benefits out of it. However, the right of usage of the same is not similar to knowhow, patents copyrights, trademarks, licenses, franchises or any other business or commercial rights where the asset is acquired and the payee becomes the owner. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed objections to the notice for reopening which were dismissed by the Assessing Officer, hence this petition. 4. Learned counsel Shri Soparkar for the petitioner raised the following contentions : 1) That the Assessing Officer was compelled to issue the notice at the instance of Revenue audit party though she herself was not convinced about the fact that income chargeable to tax had escaped assessment. 2) For the assessment year 2007-2008, this very issue of depreciation on the right to use knowhow came up for consideration, at which time, the assessment for the assessment year 2010-2011 was not yet completed which was completed without making additions. According to the counsel, therefore, the Assessing Officer even during the origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent before the honourable High Court of Gujarat. The Honourable High Court of Gujarat vide order dated 11/12/2014 has quashed the notice u/s. 148 for A.Y. 2007-08 and review petition has been filed. The objection raised by the Revenue Audit Party for the A.Y. 20010-11 is also not acceptable. Since the action getting barred by the limitation by 31.03.2007, as this AY 2010-11 falls in within four years remedial action is being initiated. Therefore, in order to settle the objections, remedial action is being taken. Considering the facts of the case, the most suitable remedial action for the issues would be reopening of assessment u/s.147 of the IT Act. The approval for the same may kindly be granted." 7. Two things thus immediately become ..... X X X X Extracts X X X X X X X X Extracts X X X X
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